Dorsey, Judge,
delivered the opinion of the court.
The first reason assigned by the appellants for the reversal of this decree is, that the appellees nor either of them can derive any benefit from the alleged trust in-the will of Joseph W. Clagett until his debts are paid, which is neither alleged or proved. As far as this objection rests upon the imputation of defective- allegations in the bill, it does not appear to be sustained. If all the matters charged in the bill were true, it would not be requisite to entitle the appellees to the relief sought either to allege or prove the non-payment of the debts of the testator. The appellees charge that the deed from Joseph W. Clagett to William D. Clagett, made under the special trust and confidence that the grantee should pay the debts of the testator, which fact, if established, would in effect be a revocation of that clause in the will that directs the testator’s real and personal estate to be kept together until his debts should be paid. And the further allegation of the sale of the land devised in trust for Henrietta M. Hall and her children, is of itself evidence that the debts were paid.
The second reason is, that the deed from Joseph W Clagett to Wm. D. Clagett of the 17th of April, 1828, was founded on a good and valuable consideration, and there is no evidence to shew that the grantee took under the will, and not under the deed, and as the debts of the testator exceeded the value of the property in Calvert county, and his other property not disposed of by the deed, the whole was applicable to the payment of the debts. In support of the allegations in the bill, that the deed of the 17th of April, was obtained by fraudulent pretences and undue influence exercised over the testator, no testimony has been offered; and the answer of [91]*91William D. Clagett, which is controlling evidence upon this subject, disproves such an assertion. That there was in the execution of this deed, a secret trust that the grantee should pay the debts of the grantor, some equivocal, inconclusive testimony has been offered, rather by way of inference than as direct proof. It has been proved that William D. Clagett sold the trust property under the will, well knowing the inadequacy of the testator’s estate to pay his debts, and that frequently since that period he had admitted it to be his intention to invest the proceeds of sale, as directed by the will in trust for his sister and her children. From these acts and admissions an inference might arise of the existence of the secret trust in relation to the deed. To repel which, the will of Susanna Digges, the deed from Joseph W. Clagett and William D. Clagett to Benjamin II. Clarke and others, and also other testimony have been offered by William D. Clagett, to show that the deed of the 17th of April was executed upon a full and adequate consideration, wholly inconsistent with the existence of the secret trust aforesaid. But to such will, deed, and testimony, the appellees’ solicitor have objected on the ground that the deed of the 17th of April being impeached for fraud, no evidence of any other consideration than that expressed in it can be received to sustain it. And the case of Betts and wife vs. The Union Bank, and many other cases, have been adduced to support the objection. But the authorities referred to have no application to the question on which they have been produced. The deed before us has not been rendered void and inoperative by disproving the consideration expressed in it. The proof is not offered to ingraft into it a new consideration, without which it ceases to have any legal existence or validity, nor to add to, vary or change the written instrument by proving a consideration not expressed in it, but it is offered to contradict the evidence (if any had been produced) of fraudulent pretences and undue influence exercised over the testator; and to repel and discredit the charge of secret trust to pay debts. But an unanswerable reply to the objection to [92]*92the evidence offered is, that it was not taken by exception in the Chancery court, agreeably to the requisition of the act of 1832, eh, 302, sec. 5, and is therefore excluded from the consideration of this court. Had the testimony given by the appellees to prove the secret trust been objected to in the court b.elow as inadmissible for that purpose, the objection must have been sustained. The effect of its introduction was in opposition to one of the best established principles of the law of eyidence, to change and add to a written agreement By a new and important clause altering the terms of the contract; the omission to insert which in said agreement was neither alleged or proved to have been the result of fraud, surprise, or mistake.
But reject if you please the evidence now objected to by the appellees, and it avails them nothing. Their inferential proof of this secret trust is annihilated by the answer of Wm. D. Clagett, and disproved by the deed of the 17th of April itself, which contains a covenant warranting the property conveyed to the grantee free, and discharged from all claims and incumbrances arising under the grantor.
The effort which has been made to shew that the deed of the 17th of April is to be regarded as a part of the last will and testament of Joseph W. Clagett, cannot be supported. The deed upon its face bears no mark of such testamentary character. When viewed in connection with the will no. such inference can be drawn from their inspection. There is nothing in the proof in the cause to sustain it. The deed itself demonstrates its untruth.
We do not design at this time to express any opinion whether Wm. D. Clagett (when the proceedings in the cause shall have been placed in that situation in which they ought to be before a final adjudication is made upon the rights of the parties) will be permitted to apply the proceeds of sale of the trust property to the payment of the testator’s debts; all we mean to say is that if the facts stated in his ansrver be substantiated, the proceedings and proofs in the cause as [93]*93now presented to us, interpose no estoppel or inflexible principle of equity to debar him from such relief.
In the discussion of the third objection it has been conceded to the solicitors on both sides, that the decrees of the chancellor are erroneous in ordering the fund in controversy to be brought into court to be paid to the complainants. Such a disposition being in direct opposition to the prayer for relief, which he has been called on to grant, and to the will of Joseph W. Clagett, which in the most guarded and explicit manner excluded one of the complainants from the receipt and participation in any part of the fund. (
The fourth reason is that the bill is 'defective in not making the children of the female complainant parties, and in the omission of other necessary parties. There can bo no error in not making the children of Henrietta M. Hull parties, because it does not appear that she has any children, and if it did so appear they ought not to be made parties, the terms of Joseph W. Clagett s will vesting the property in controversy absolutely in the mother so far as the rights of her children are concerned. But there is error in not making the Bank of the Metropolis a party; the answer of Wm. D. Clagett shewing its interest in the. fund on which the decree of the court is to operate. The bill contains no specific prayer for an account of personalty.
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Dorsey, Judge,
delivered the opinion of the court.
The first reason assigned by the appellants for the reversal of this decree is, that the appellees nor either of them can derive any benefit from the alleged trust in-the will of Joseph W. Clagett until his debts are paid, which is neither alleged or proved. As far as this objection rests upon the imputation of defective- allegations in the bill, it does not appear to be sustained. If all the matters charged in the bill were true, it would not be requisite to entitle the appellees to the relief sought either to allege or prove the non-payment of the debts of the testator. The appellees charge that the deed from Joseph W. Clagett to William D. Clagett, made under the special trust and confidence that the grantee should pay the debts of the testator, which fact, if established, would in effect be a revocation of that clause in the will that directs the testator’s real and personal estate to be kept together until his debts should be paid. And the further allegation of the sale of the land devised in trust for Henrietta M. Hall and her children, is of itself evidence that the debts were paid.
The second reason is, that the deed from Joseph W Clagett to Wm. D. Clagett of the 17th of April, 1828, was founded on a good and valuable consideration, and there is no evidence to shew that the grantee took under the will, and not under the deed, and as the debts of the testator exceeded the value of the property in Calvert county, and his other property not disposed of by the deed, the whole was applicable to the payment of the debts. In support of the allegations in the bill, that the deed of the 17th of April, was obtained by fraudulent pretences and undue influence exercised over the testator, no testimony has been offered; and the answer of [91]*91William D. Clagett, which is controlling evidence upon this subject, disproves such an assertion. That there was in the execution of this deed, a secret trust that the grantee should pay the debts of the grantor, some equivocal, inconclusive testimony has been offered, rather by way of inference than as direct proof. It has been proved that William D. Clagett sold the trust property under the will, well knowing the inadequacy of the testator’s estate to pay his debts, and that frequently since that period he had admitted it to be his intention to invest the proceeds of sale, as directed by the will in trust for his sister and her children. From these acts and admissions an inference might arise of the existence of the secret trust in relation to the deed. To repel which, the will of Susanna Digges, the deed from Joseph W. Clagett and William D. Clagett to Benjamin II. Clarke and others, and also other testimony have been offered by William D. Clagett, to show that the deed of the 17th of April was executed upon a full and adequate consideration, wholly inconsistent with the existence of the secret trust aforesaid. But to such will, deed, and testimony, the appellees’ solicitor have objected on the ground that the deed of the 17th of April being impeached for fraud, no evidence of any other consideration than that expressed in it can be received to sustain it. And the case of Betts and wife vs. The Union Bank, and many other cases, have been adduced to support the objection. But the authorities referred to have no application to the question on which they have been produced. The deed before us has not been rendered void and inoperative by disproving the consideration expressed in it. The proof is not offered to ingraft into it a new consideration, without which it ceases to have any legal existence or validity, nor to add to, vary or change the written instrument by proving a consideration not expressed in it, but it is offered to contradict the evidence (if any had been produced) of fraudulent pretences and undue influence exercised over the testator; and to repel and discredit the charge of secret trust to pay debts. But an unanswerable reply to the objection to [92]*92the evidence offered is, that it was not taken by exception in the Chancery court, agreeably to the requisition of the act of 1832, eh, 302, sec. 5, and is therefore excluded from the consideration of this court. Had the testimony given by the appellees to prove the secret trust been objected to in the court b.elow as inadmissible for that purpose, the objection must have been sustained. The effect of its introduction was in opposition to one of the best established principles of the law of eyidence, to change and add to a written agreement By a new and important clause altering the terms of the contract; the omission to insert which in said agreement was neither alleged or proved to have been the result of fraud, surprise, or mistake.
But reject if you please the evidence now objected to by the appellees, and it avails them nothing. Their inferential proof of this secret trust is annihilated by the answer of Wm. D. Clagett, and disproved by the deed of the 17th of April itself, which contains a covenant warranting the property conveyed to the grantee free, and discharged from all claims and incumbrances arising under the grantor.
The effort which has been made to shew that the deed of the 17th of April is to be regarded as a part of the last will and testament of Joseph W. Clagett, cannot be supported. The deed upon its face bears no mark of such testamentary character. When viewed in connection with the will no. such inference can be drawn from their inspection. There is nothing in the proof in the cause to sustain it. The deed itself demonstrates its untruth.
We do not design at this time to express any opinion whether Wm. D. Clagett (when the proceedings in the cause shall have been placed in that situation in which they ought to be before a final adjudication is made upon the rights of the parties) will be permitted to apply the proceeds of sale of the trust property to the payment of the testator’s debts; all we mean to say is that if the facts stated in his ansrver be substantiated, the proceedings and proofs in the cause as [93]*93now presented to us, interpose no estoppel or inflexible principle of equity to debar him from such relief.
In the discussion of the third objection it has been conceded to the solicitors on both sides, that the decrees of the chancellor are erroneous in ordering the fund in controversy to be brought into court to be paid to the complainants. Such a disposition being in direct opposition to the prayer for relief, which he has been called on to grant, and to the will of Joseph W. Clagett, which in the most guarded and explicit manner excluded one of the complainants from the receipt and participation in any part of the fund. (
The fourth reason is that the bill is 'defective in not making the children of the female complainant parties, and in the omission of other necessary parties. There can bo no error in not making the children of Henrietta M. Hull parties, because it does not appear that she has any children, and if it did so appear they ought not to be made parties, the terms of Joseph W. Clagett s will vesting the property in controversy absolutely in the mother so far as the rights of her children are concerned. But there is error in not making the Bank of the Metropolis a party; the answer of Wm. D. Clagett shewing its interest in the. fund on which the decree of the court is to operate. The bill contains no specific prayer for an account of personalty. If it did, or if the com? plainants below under the allegations in their bill and the general prayer for relief require such an account, Susanna, Maria Hill must he made a party. There is no occasion to make her a party on account of any- interest she once had in the moiety of the Calvert county lands.
The sufficiency of the fifth reason, which is that Charles Hill having renounced the trust, could not he either jointly with William D. Clagett, or'separately charged for a breach of trust by the latter if he has been guilty of one, and that the chancellor erred in so charging .him we think cannot be denied. His answer, which is responsive to the bill, and which is confirmed by the testimony of James Kent, taken by the appellees, shews his renunciation of the trust to which [94]*94he was appointed in conjunction with William D, Clagett, and there is no proof whatever that any portion of the trust fund ever came to his hands. The auditor dealt with Charles Hill accordingly. In making his audit of the trust fund he stated no account against him, there being nothing in the record to warrant it. In his account A, he charged Wm. D. Clagett with the' entire price for which the land was sold, with interest thereon from the day of sale, although according to the proofs in the cause a considerable portion thereof was staid by an injunction, issued in this cause in the hands of Vernon H. Dorsey, a co-defendant, who at the prayer of the appellees was enjoined from paying the same either to Wm. D. Clagett or Charles Hill, and by the prayer of the bill the decree was asked for to compel said Dorsey to bring the money into court for investment. This injunction was continued for upwards of two years and a half, until the final decree, when the chancellor ratified account A, as above stated, which charged William D. Clagett alone, but further decreed not only against Wm. D. Clagett but against Charles Hill, also requiring them to bring into court the whole amount of account A, although it appeared by the auditor’s accounts B and C, that a part of that amount was still in the hands of Vernon H. Dorsey, under the operation of the injunction. Against Vernon H. Dorsey no decree was passed. Thus, Hill, as trustee, was ordered to bring into court a large sum of money, with interest thereon, not one cent of which was it in proof that he had ever received, or ever ought to have received, and to pay a sum of money, with interest thereon, for two years and a half, which by the positive injunction of the Chancery court issued in this cause, remained during that time in the hands of another, and which he, Hill, by the same injunction, was prohibited from receiving, and never did receive or ought to have received. As to this last mentioned sum of money, and interest, Wm. D. Clagett shared the same fate with Charles Hill, and his condition differed not materially from that of Hitt, except that but for the issuing [95]*95of the injunction he was authorized to have received that sum of money, without interest, from Vernon H. Dorsey.
Our opinion of the sixth reason is sufficiently expressed in the views we have taken of the fifth.
We do not think the decree of the chancellor erroneous on the ground assigned in the seventh reason. Had the conduct of William D. Clagett been such as it is alleged to have been in the bills of complaint, and his situation as such as from the proofs in the cause it would be fair to presume it to be, and had the complainants shewn themselves entitled to the fund in question, we think the chancellor would have been authorized in ordering it into court.
The objection raised by the eighth reason as to the form of the bill of complaint we do not think, well founded. Neither by any of the specific prayers in the bill, nor by any of the proceedings under it, have the complainants claimed any thing of the defendants on account of the personal estate. They could have no motive therefore .in calling on the executor to account for the personal estate of the deceased. Nor can a reason be assigned why the complainants should call on the creditors to exhibit their claims. So far from admitting the rights of such claimants to the whole or any part of the fund in litigation, the bill of complaint is predicated upon a total denial of such rights, and a call for such account and exhibition by the appellees, would have been an act of great inconsistency. Not so on the part of the appellants. Their defence could only be sustained by the statement of such an account and the proof of the debts due by the testator. It is for them, therefore, and not the opposite party, to ask at the hands of the chancellor an opportunity of taking such account and exhibiting such proof.
We concur with the appellants in their assertion in their ninth reason, that the decree is erroneous in declaring the deed from Joseph W. Clagett to William D. Clagett void, but not for the reason assigned. Had the appellees established by proof the allegation in their bill that the deed was obtained by fraudulent pretences and undue influence, exercised [96]*96over the testator, without any specific prayer for that purpose, but under the prayer for general relief, it was- competent for the Chancery court to have vacated the deed. The error which we in this respect impute to the decree is, that it vacates the deed under this allegation without a scintilla of proof to support it, and regardless of the defendant’s (Wm. D. Clagett's) answer which positively denies it.
We cannot concur in the appellants’ tenth reason “ that the chancellor erred in rejecting the testimony of Charles Hill,” because Hill being a defendant in the cause, and being examined as a witness without the pre-requisite order of the court for that purpose, his testimony was properly rejected on that ground. But it was inadmissible on another ground, he had a- direct interest in defeating the claim of the appellees and sustaining that of William D. Clagett, his co-appellant, who had pledged the fund in controversy to secure a debt due by him to the Bank of the Metropolis, and for which the witness offered was liable as the endorser. But we are of opinion that the chancellor erred in permitting the whole evidence given by James Kent to go to the auditor in his statements of the accounts directed by the decree of the 10th of November, 1834, a great part of the testimony of the witness appearing to be inadmissible. In státing the accounts ordered, the claims of the creditors of the testator upon the fund in dispute was a fit subject for the consideration of the auditor, notwithstanding they were matters put in issue by the bill and answers. The witness, Kent, was interested in establishing the secret trust alleged in the amended bill, as by securing to the creditors payment of their demands out of the property conveyed by the deed of the 17th of April, he so far rescued the lands conveyed to him in Calvert county from the pursuit of the creditors. So far also as to the evidence offered of the notes assigned to William D. Clagett, and the sperate payment made upon each assigned note, such testimony was inadmissible without producing the assigned notes or satisfactorily accounting for their non-production, and on proof of service of the appropriate notice to [97]*97produce them should they have been in the possession of the appellants so as to let in the secondary evidence which was offered. The same objection applies to that part of the witness’s answer to the sixth interrogatory, which alleges the execution of the bond by William D. Clagett as trustee of Mrs. Hall, and of the deed from Clagett, Hill and wife, to James Kent. The chancellor therefore on the appellants’ exception to the testimony given by ■ James Kent, ought to have withheld the following portions of it from the auditor, viz: the answers of the witness to the third interrogatory, and to the fourth, except the proof of the cash payment of $1,500, and to the fifth, and also all' that part of the answer to the sixth interrogatory which alleges the execution of the deed and bond above mentioned, and the assignment and payment of the notes mentioned in his answer to the preceding interrogatory. From an attentive examination of the record in this case, we are satisfied that the reversal or affirmance of the decree passed herein, cannot take place without the risk of doing injustice to one oi’ the other of the parties, and have therefore adopted the following order :
It appearing to this court that the substantia] merits of the cause will not be determined by the reversing or affirming the decree of the chancellor, and that the purposes of justice will be advanced by so doing, it is thereupon, this twenty-first day of December, 1837, ordered and adjudged by the authority of this court that this cause be remanded to the court of Chancery for the purpose of amending the pleadings, making the Bank of the Metropolis by its proper corporate name a party defendant, and that such other and further accounts be stated by the auditor, and such further testimony be taken therein before a commissioner or commissioners, the auditor or otherwise, and other proceedings had under the direction of the chancellor, as shall be necessary for determining the cause upon its merits.
CAUSE REMANDED TO CHANCERY UNDER ACT OF 1832, ch. 302.